.comment: A Moderate Approach to Intellectual Property - page 2

"Mom, the Germans Are Doing It Again . . ."

July 11, 2001

By
Dennis E. Powell

Intellectual property takes,
basically, four forms: copyrighted works, patented inventions,
trademarks, and trade secrets. All of them figure in computing.

For instance, BIOS information is
usually kept secret. This began when it was not known that computing
would advance as rapidly as it has (there was an internal study at
IBM that said that for the entire life of the industry, only 250,000
PCs would be sold). Of course, the classic secret is the recipe for
Coca Cola. It is not patented or copyright, because those things
expire and the Coca Cola Company would like to stay in business
forever.

The other three classes of
intellectual property have in common that they can be licensed. The
holder of the copyright, patent, or trademark can specify the
circumstances under which a particular piece of intellectual property
may be used. Software is typically copyrighted and licensed to users
(even the GPL is designed to provide the terms and conditions of use
of copyrighted material; that's why the L stands for "license").
In the good old days of a decade or two ago, patents typically
(though not always) were matters of hardware; the user would not be
governed by license provisions (you could, for instance, use your
power supply not to juice up your motherboard but to electrocute the
guppies, if your tendencies were in that direction, and the patent
holder would probably wish you no ill unless you decided to market
power supplies for that purpose and didn't obtain license to the
patent first), but a secondary manufacturer could obtain license to
build the patented item or to build something based on the advance
covered by the patent. Trademarks are (or were, again in the happy
days of yore) means whereby a company identified itself and its
products; these are licensed to people who typically wish to
establish a business under a degree of supervision by the trademark
holder, in exchange for gaining the reputation and recognition that
the trademark brings.

All of this is perfectly reasonable.
People who go to the trouble of creating something by all rights
ought to have a say in what becomes of their creation and, if it's
the kind of thing where there's money to be made, enjoy some or all
of that money. (Not all intellectual property has much value;
arguably, the vast majority doesn't, but that surely shouldn't
diminish the creator's rights to it, just the likelihood that anybody
would try to steal it.)

The problem has come not in the area
of secrets, which if kept are pretty well absolute, or copyright,
which is straightforward, but in the area of patents and trademarks.

There are places that are virtual
patent factories. I don't mean to be picking on IBM, but it is surely
one of these -- IBM applies for more patents daily than most large
companies do in a year. And while there are many IBM patents that
clearly represent huge advances in technology, there are also many
that most of us would probably find to be very minor advances. Even
so, there's not much griping to be done, because tangible
improvements are being made, and from that we all live marginally
better lives, or so the argument goes.

It's in the area of things like web
design that one has to wonder if the patent system hasn't maybe
gotten out of whack. When a company can patent the number of clicks
it takes to place an online order, there's trouble. And that is not
the most egregious example available.

Then we look at trademarks. Companies
that ought to know better are trademarking ordinary words, and the
U.S. government, which ought to know better, is allowing it, and
other governments, which ought to know better, are allowing it to be
enforced by whatever pecular means local custom dictates.

U.S. law requires that trademarks be
vigorously protected, lest they fall into common usage and lose their
brand-specific meaning. The classic example of this is Xerox, which
for a time took out advertisements and which may still send letters
to transgressors who commit their offenses in print, explaining that
Xerox is a company name, not a generic term for photocopying. (The
brand must be protected. Remember, Xerox is the only company that
developed the precursors -- pun intended --of the modern graphical
user interface and then failed to capitalize on it. The result is
other companies raking in billions while Xerox has fallen to the
extent that one upstate New York restaurant will give you a steak
dinner for a share of Xerox stock. Perhaps it would have been good to
protect the company itself as vigorously as its trademark has been.)

What happens, though, when the
trademarked word is not a company logo or a unique, synthesized word,
but instead something already in common, non-trademarked usage?
Though not uniquely the realm of software companies, this kind of
thing has found a special home in that industry, which is wont to
give its companies and products goofy, unhelpful names. Years ago,
those who heard of Lotus Development Corp. for the first time would
not have been unreasonable in supposing that it was a company that
supplied blooming water plants, and that Lotus 1-2-3 was perhaps its
brand of fertilizer. This phenomonenon was not clarified by
advertisements, as typified by the Wang television campaign in which
the camera panned spastically around the room as people you never
quite saw mumbled technogibberish; you never did find out what was
being advertised.

We have Red Hat, which means nothing
computer-related, Caldera, which means "crater," a term now
seen as appropriate only by holders of the company's stock; Mandrake,
a medicinal root that is said to scream when pulled; and Slackware,
which is just kind of offputting. Debian, as usual, goes its own way,
having an actual meaning -- its founder, Ian Murdock, and his wife,
Deb -- form together a word that is both unique and appropriate to
the kind of following which that distribution has engendered. ("Good
day, brother. Are you a Benedictine?" "No, I'm a Debian.")

We have products like Adobe
Illustrator, in which two commonly used words suggestive of dirt
buildings and Norman Rockwell are taken as proprietary by a company
that has done some good things over the years, though naming and
trademarking are not among them.

The result, then, is situations like
the one that popped up involving KIllustrator. They deserve our calm
attention, because the current method of dealing with them, as
exemplified in the instant case, is unsatisfactory.